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ELCAllowedApplication dated 14.4.2015 in suit filed 12.5.2009 (number not stated in judgment)· [2016] KEELC 232 (KLR)

Rusy Jeserem Kirui v Francis Chepsiror Kipchirchir [2016] KEELC 232 (KLR)

High Court of Kenya
29 July 2016
AOANTONY OMBWAYO
1,979 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled an eviction judgment because the defendant was never properly served with court papers, giving him a fresh chance to defend himself.

What this practically means

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Executive summary

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The defendant, Francis Chepsiror Kipchirchir, applied by notice dated 14.4.2015 for review and setting aside of orders issued on 20th June 2013, reinstatement of the status quo on the suit land, and leave to file his defence out of time. The underlying suit, filed on 12.5.2009 by the plaintiff, the registered owner of Moi's Bridge/Sirikwa Block 2 (Ziwa)/540 measuring 2.49 Ha, sought the defendant's eviction; judgment was entered undefended and eviction orders issued on 31st July 2014, pursuant to which the defendant was allegedly evicted. The defendant asserted that he occupied adjacent land of which he was the registered proprietor since 1995, that he was critically ill and hospitalised when service was allegedly effected, that he was illiterate, and that a boundary dispute between the parties had been resolved by the local administration. The plaintiff maintained that service was duly effected by a process server, that the defendant was not ill at the relevant time, and that the proper remedy was appeal rather than review. The court examined the affidavit of service of E. M. Daliti Munyasi and found it illogical and unsatisfactory, noting confusion as to the defendant's whereabouts and that the process server stated the defendant became known to him only after service, when identification should precede service. Holding that the defendant was not properly served, the court set aside the undefended judgment and all subsequent orders and proceedings and allowed the application, with costs in the cause.

Key legal issues

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01

Validity of service of summons to enter appearance

Holding

The affidavit of service of E. M. Daliti Munyasi was not satisfactory and the defendant was not properly served; the ex parte judgment and all consequential orders were set aside.

Reasoning

The court scrutinised the process server's affidavit and found internal inconsistencies: the process server said he found the defendant away at Ziwa Sirikwa Market yet located him through the Chief; and he stated the defendant became known to him only after service, when identification should precede service. This rendered the service illogical and unreliable, justifying setting aside the undefended judgment.

p. 4
02

Whether the application is properly one for review or whether appeal is the only remedy

Holding

The court did not decide the review question on merits; it granted substantive relief by setting aside the judgment on the ground of defective service.

Reasoning

The plaintiff contended that review was unavailable and appeal was the only remedy, there being no new evidence. The court bypassed this dispute, resting its decision on the unsatisfactory affidavit of service, which undermined the very foundation of the undefended judgment and subsequent eviction orders.

p. 4

Legal principles established

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  • A defendant must be identified to the process server before service of summons is effected
  • An affidavit of service that is illogical and unsatisfactory cannot found a valid regular judgment against a defendant

Court orders

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  1. 1.The judgment entered on 17.6.2008 is set aside
  2. 2.All subsequent orders and proceedings are set aside
  3. 3.The application dated 14.4.2015 is allowed
  4. 4.Costs in the cause
Jurisdiction invoked
Inherent and review jurisdiction of the High Court over its own interlocutory and final orders (application to review/set aside orders of 20.6.2013 and subsequent eviction orders)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rusy Jeserem Kirui v Francis Chepsiror Kipchirchir [2016] KEELC 232 (KLR)", Case Analysis (2016). Application dated 14.4.2015 in suit filed 12.5.2009 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/232/eng@2016-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.